Author: James Zaitsoff

Passing over the Executor: What BC Law Says About Executor or Administrator Conflicts of Interest

March 27, 2020

What if you are a beneficiary under a will, and you have concerns about the person named as executor in that will? Maybe you believe the named executor is in a conflict of interest or may not treat the beneficiaries with an even hand (especially if the will allows for the exercise of some discretion by the executor). Maybe you suspect that the named executor will engage in impropriety or misconduct once they obtain a grant of probate. Maybe you simply do not get along with the named executor. At what point is it appropriate to ask that the court pass over a person as executor or administrator of an estate?

The Wills, Estates and Succession Act, S.B.C. 2009, Chapter 13 [“WESA”] allows for a person having an interest in an estate to apply to remove or pass over a personal representative. To “pass over” means to grant probate or administration to a person who has less priority than another person to become a personal representative. This means passing over a named executor where there is a will, or passing over the person entitled to become administrator if there is an intestacy (no will).

The court may pass over a person entitled to become the personal representative if the court considers that the person should not be granted probate or administration. Section 158 of WESA includes a non-exhaustive list of circumstances that the court may consider. Some of them are clear, such as if the person refuses to accept the position, or is incapable of managing his or her own affairs, or has been convicted of an offence involving dishonesty.

Subsection 158(3)(f) is more general, and allows the court to consider whether the person is (1) unable to make the decisions necessary to discharge the office of personal representative, (2) not responsive, or (3) otherwise unwilling or unable to or unreasonably refuses to carry out the duties of a personal representative, to an extent that the conduct of the personal representative hampers the efficient administration of the estate.

The court will consider the following principles when deciding whether to pass over an executor named in a will:

  1. Recognize that the testator’s choice of estate trustee should not be lightly disregarded. A deceased’s right to nominate his executors is not to be lightly interfered with;
  2. Require clear evidence of necessity;
  3. Focus on the main consideration of the welfare of the beneficiaries; and
  4. Require proof that the executor’s acts or omissions are of such a nature as to endanger the administration of the estate.

In the recent case of Gawdun v. Lord 2020 BCSC 266, the court considered an application to pass over the person named as executor of the deceased’s will. The deceased and the proposed executor (“Ms. Lord”) were in a common law relationship at the date of death. The applicants were the deceased’s children from a previous marriage.

The plaintiffs argued that Ms. Lord should be passed over for the following reasons:

  1. The plaintiffs doubted that Ms. Lord would maintain an even hand between her own children and the plaintiffs, all of whom were residuary beneficiaries;
  2. The plaintiffs alleged that Ms. Lord had continually demonstrated hostility and animosity towards them and the deceased’s sister (who was named as co-executor);
  3. The plaintiffs alleged that Ms. Lord was involved in the deceased’s estate planning in 2010 and 2011, which resulted in the execution of the will providing the majority of the estate to Ms. Lord and her children, which conduct was at issue in an underlying wills variation application;
  4. The plaintiffs alleged that Ms. Lord offered to pay the deceased’s sister $50,000 from the estate during the course of the action which the plaintiffs found suspicious;
  5. Foreclosure proceedings had been initiated to recover funds owing to the estate, which was being funded entirely by the plaintiffs, and Ms. Lord had refused to assist in collecting the debt owing; and
  6. The plaintiffs alleged Ms. Lord entered into a share exchange agreement as attorney for the deceased. The terms of the share exchange agreement were alleged to have conferred an improper benefit on Ms. Lord.

The court dismissed the application, concluding that passing over Ms. Lord was not justified. There was no evidence demonstrating misconduct by Ms. Lord that was capable of supporting a decision to pass her over. Even if the court accepted there was misconduct as alleged, it is past misconduct and was not done in her capacity as executor.

If may be difficult to convince a judge that a person will endanger the welfare of the beneficiaries or commit misconduct as executor or administrator before they have even been appointed. If you have concerns about the person who is entitled to be personal representative, but don’t believe that you can succeed with an application to pass over, you may also bring an application remove and replace a personal representative if those concerns become a reality. This will be discussed in an upcoming post.

You are permitted to arrange your affairs to avoid wills variation claims

March 20, 2020

Under the Wills, Estates and Succession Act [SBC 2009] Chapter 13, a spouse or child of a deceased person may bring an action to vary that deceased person’s will, if the will does not make adequate provision for the proper maintenance and support of the spouse or child. This is often a source of frustration for a will-maker, who seeks to have testamentary autonomy and final decision-making power over how their assets will be distributed after their death.

However, wills variation claims only relate to assets that form part of the deceased’s estate. If assets pass outside of the deceased’s estate, then they are not available to be re-distributed as part of a wills variation action. Assets can pass outside of an estate in a variety of ways, including joint registration of property (so that the asset passes to the surviving joint owner), designation of direct beneficiaries, or settling assets into a trust. If there are no assets held in an estate, then there is no benefit to a disappointed beneficiary in varying a will. In response to this situation, beneficiaries have attempted to challenge steps taken to avoid wills variation claims.

In British Columbia, the Fraudulent Conveyance Act [RSBC 1996] Chapter 163 provides that a disposition of property is void and of no effect if made to delay, hinder, or defraud creditors and others of their just and lawful remedies. In other words, you cannot take steps to hide assets and avoid claims.  However, B.C. courts have repeatedly held that a person may arrange their affairs to avoid possible wills variation claims. A wills variation claim, which arises upon the death of the will-maker, does not qualify a claimant as a “creditor or other” within the meaning of the Fraudulent Conveyance Act.

In 2006, the British Columbia Law Institute proposed that an anti-avoidance provision be added to the legislation, which would provide that a transaction conferring a benefit on a second person would be voidable against an eligible claimant if it was made by the deceased for the purpose of defeating rights under the dependents relief legislation.

The legislature declined to act on the recommendation. The legislature has not seen fit to pass legislation or amend existing legislation to prevent the avoidance of wills variation claims. Will-makers are still permitted to arrange their affairs to avoid possible wills variation claims, most commonly by stripping their estate of any assets.

A disappointed beneficiary of a stripped estate may still have a remedy. For example, there may a claim that certain assets which appear to pass outside of the estate should actually be considered part of the estate and available for a wills variation claim.

Executors and Trustees May Seek Advice From the Court

March 13, 2020

Executors and trustees may be hesitant or indecisive when administering estates and trusts, especially when the will or trust deed gives them some discretion in carrying out their duties or when they are concerned about balancing the interests of competing beneficiaries – keeping everyone happy.

The Trustee Act permits a trustee, executor or administrator to apply “for the opinion, advice or direction of the court on a question respecting the management or administration of the trust property or the assets of a will-maker or intestate.”  The court also has the inherent jurisdiction to supervise trusts, to protect the welfare of the beneficiaries.

It may be tempting for an executor or trustee to seek court approval for any decision or exercise of discretion.  It would be comforting to have a judge give his or her blessing to a proposed course of action.  However, it is not the court’s job to consider and approve every decision of an executor or trustee.  When is it appropriate to involve the court in decisions that should be made by executors and trustees?

Prior court decisions suggested that section 86 of the Trustee Act allowed an executor or trustee to seek the advice, opinion or directions of the court on a legal question, and then act on that advice.  The section was not intended for the court give advice, for example, in a situation where there was a conflict between interested parties, such as competing beneficiaries.

However, the Court went beyond merely advising on legal questions in Toigo Estate (Re) 2018 BCSC 936.  In Toigo, the deceased created a spousal trust which provided that the net income of his estate would be paid to his wife during her lifetime.  The will also permitted the trustees to encroach on the capital of the estate in favour of his wife, in the trustees’ uncontrolled discretion.  The residue of the estate was to be divided between the deceased’s children and grandchildren after his wife’s death, but in a manner which would provide that that there would not be an equal distribution amongst the grandchildren.

The wife asked the trustees for a significant encroachment into the capital (tens of millions of dollars), in order the engage in her own estate planning, which would provide for a more equal distribution of the deceased’s estate amongst the grandchildren.

The trustees were clearly permitted to make the encroachment (and had uncontrolled discretion to do so).  However, they still wanted the court’s “opinion, advice or direction” as to whether they should proceed.

The court held that it had the jurisdiction to approve the encroachment under s. 86 of the Act or the inherent jurisdiction of the court to supervise trusts, and they approved the encroachment.  The court held that because of the magnitude of the encroachment, the court could provide advice on this “momentous decision”.

In making the decision, the court asked the following questions:

  1. Does the trustee have the power under the trust instrument and the relevant law to make the “momentous decision”?
  2. Has the trustee formed the opinion to do so in good faith and is it desirable and proper to do so?
  3. Is the opinion formed by the trustee one that a reasonable trustee in its position, properly instructed, could have arrived at?
  4. Is the Court certain that the decision has not been vitiated by any actual or potential conflicts of interest?

Executors and trustees should consider whether they ought to apply to the court for a stamp of approval when taking drastic or “momentous” action in relation to the administration of estates or trusts.  There are other options to protect executors and trustees, such as requiring that all beneficiaries sign release and consent documents before taking the proposed course of action.  However, this may not always be practical or possible, especially if some beneficiaries refuse to sign such a document.

Beneficiary Holds Estate in Trust for a Third Party

March 6, 2020

Where a deceased person leaves a will, a disappointed party may seek to vary the will, or argue that the will is invalid on a number of grounds.  If a deceased dies without a will, the disappointed party has fewer remedies.  If there is no will, the estate passes on an intestacy, and the Wills, Estates and Succession Act sets out who will receive the estate.  There is no discretion for the court to stray from what is provided for in the Act.

In limited cases, this may not be in the end of the matter.  Bergler v. Odenthal 2019 BCSC 1882 was such a case.  In Bergler, the deceased died after the rapid onset of pancreatic cancer.  She did not have any children.  Her common law spouse, Mr. Odenthal, survived her.   She did not make a will.  As a result, her entire estate passed to Mr. Odenthal on an intestacy.

However, she gave Mr. Odenthal specific instructions about her estate.  She told him that she wanted her assets to be given to her niece.  All instructions were verbal – there was nothing in writing.  The issue was whether a trust was created by the deceased, wherein Mr. Odenthal held her assets solely for the benefit of the niece.

It is risky for a testator to deliberately forego preparing a will, and instead trust that the person who receives the estate under an intestacy will distribute assets in accordance with their instructions, especially when there is nothing in writing to confirm these instructions.  There may be no witnesses and/or the person who received the instructions may deny ever receiving such instructions.

Mr. Odenthal refused to transfer the assets to the niece after the deceased’s death.

Fortunately for the niece, the deceased made statements in the presence of third parties about her wishes, and Mr. Odenthal had a conversation with the niece and a third person (a second niece) about these wishes.  He also made certain admissions during his examination for discovery and at trial that these were the deceased’s wishes.

A secret trust arises where a person gives property to another (the “donee”), communicating to that person an intention that the property be dealt with in a specific way upon the happening of an event, and the donee accepts the obligation. The essential elements are the intention of the donor, a communication of the intention to the donee and acceptance of the obligation by the donee.  The court in Bergler held that the requirements of a secret trust were satisfied, and ordered judgment against Mr. Odenthal for the value of the assets that formed the deceased’s estate.

A Testator Cannot Override a Beneficiary’s Statutory Right to Vary a Will

February 28, 2020

A spouse or child of a deceased person may apply to vary the will of that deceased person, if they do not believe that it made adequate provision for them.  This is obviously frustrating to testators who wish to have the autonomy to distribute their estate as they see fit.

To discourage wills variation claims, testators have attempted to include clauses to discourage wills variation claims or threaten consequences for bringing such claims.  These provisions have been held to be contrary to public policy and void.

For example, in Bellinger v. Nuytten Estate 2003 BCSC 563, the deceased included a clause in her will which provided that if any of the beneficiaries contested the terms of the will, then that beneficiary shall forfeit any legacy they may be otherwise entitled to receive.  The clause was void since it was against public policy to allow a testator to override a beneficiary’s statutory claim (to vary a will) by a provision in her will.

In Ketcham v. Walton 2012 BCSC 175, the deceased left a will that disinherited his adult independent children and instead left his estate to several friends and charities.  The will instructed the executor to take an active role in defending the will if any of the children brought a wills variation claim. The will stated that the executor was authorized to deplete the estate, if necessary, to defendant against the wills variation action, taking as many appeals as necessary to ensure that the deceased’s intentions are carried out.

The court held that while this clause does not obviously prevent a beneficiary from an inheritance if they bring a wills variation claim, that possibility existed.  As a result, the clause was void as contrary to public policy, as it purported to deny the deceased’s children their recourse to the courts.  It was, in effect, the same as what the deceased tried to do in the Bellinger case.

The clause in Ketcham also offended the rule that the executor must remain neutral in wills variation proceedings.  An executor cannot choose sides and take an active role in a wills variation claim.

The courts will not permit a testator to override a spouse or child’s statutory right to apply to vary a will, and any attempt to do so will likely be held to be void.  If you are a testator seeking to avoid wills variation claims, there are other steps which ought to be taken instead.  If you are an executor, you should not take an active role in wills variation litigation.  If you are a disappointed beneficiary, you should not be dissuaded from pursuing your rights by such a clause.

Wills Variation Claims in BC

February 13, 2020

Your last will and testament may represent your true intentions with respect to the administration and distribution of your estate.  You likely gave careful thought to what is fair and reasonable.  However, most people in British Columbia are aware that having a will is not necessarily the end of the matter.  After death, your spouse or children may apply to vary your will in certain circumstances.

These circumstances are set out in section 60 of the B.C. Wills, Variation and Succession Act.  That section provides as follows:

…if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.

This section has resulted in many disputes, lawsuits and reported court decisions.  Every case has a unique set of facts, and raises a unique issues.  Even a will which may on its face appear fair may result in a (successful) variation claim.  A deceased parent, with no surviving spouse, who leaves their estate in equal shares to their children may seem fair.  But what if one child stepped up and took care of the parent for many years?  What if one child received a large gift before the parent died?

Some Common Issues that Inevitably Arise in Wills Variation Cases

Some issues which the court must consider in a wills variation case (there are many more) include:

  • What is “adequate provision for the proper maintenance of the will-maker’s spouse or children”? This is assessed in the context of legal norms and moral norms, and what a judicious person would do in the circumstances, by reference to contemporary community standards.  If this sounds vague and non-specific, this is because the concept of “adequate provision” is a flexible one, which turns on the particular circumstances of the case.  There is not necessarily a clear answer, and what is adequate may change over time as the views of society change, or may even vary from judge to judge.
  • Did the deceased leave evidence of his or her reasons for making certain gifts or not making adequate provision for his or her spouse or children? If so, the court may accept evidence of the reasons (but it doesn’t have to), and can decide how much weight to give this evidence in light of all the circumstances.
  • If there is to be a variation, what is adequate, just and equitable? This is as flexible as the idea of whether the will-maker made “adequate provision” in the first place.
  • To what degree should the court consider gifts made by the will-maker during his or her lifetime?
  • Did the will-maker take steps to arrange his or her affairs to attempt to avoid a wills variation claim, for example by putting assets in a trust or in joint ownership with right of survivorship? If so, was this effective or should the estate plan be unwound so that assets are returned to the estate?
  • What if the person named as executor is also a beneficiary and wants to vary the will?
  • What if the person named as executor is also a beneficiary and is happy with the will and wants to defend against a wills variation claim brought by an unhappy beneficiary?
  • Only a spouse or child of the deceased can apply to vary the will. Sometimes the parties cannot even agree that the applicant was the “spouse” of the deceased.

All of this is complicated by the fact that the parties to the litigation are family, and emotions run high.

The courts have broad discretion to vary wills.  The province had the opportunity to get rid of or put limits on this discretion when the Wills Variation Act was replaced with the Wills, Estates and Succession Act in March 2014.  They chose not to do so, and so you need to be aware of the possibility of a wills variation claim, whether you are a will-maker, an executor, an unhappy (or happy) beneficiary or a spouse or child of a deceased person.

Cultural Traditions and Making Adequate, Just and Equitable Provision in a Will

February 11, 2020

If a will-maker dies leaving a will that does not make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.  What is “adequate, just and equitable” is determined in the specific circumstances, and in light of contemporary standards.

What place do the cultural traditions of the will-maker have in this consideration?

This issue arose in the recent case of Grewal v. Litt 2019 BCSC 1154.  The will-maker left each of his four daughters $150,000.  The residue of the estate (the total estate was valued at $9 million) was left to his two sons.  The court had to determine the extent to which this unequal distribution resulted from the will-maker’s East Indian cultural traditions.

The court was not persuaded that the father considered himself bound by any traditions, or that the sole reason for the unequal distribution was adherence to those traditions.  In fact, the court observed that to assume this was the case reflected stereotypical thinking about what “traditional” East Indian parents would do.  However, traditional cultural values had some influence on the father (and the mother) in how they treated their children, including in their wills.

The will was varied, but the estate was not divided equally between the siblings.  The court divided the estate 60 per cent in favour of the daughters and 40 per cent in favour of the sons. The daughters’ share was to be divided equally among the four of them. The sons’ share was to be divided equally between the two of them.

This can be compared to the facts in another case, Prakash v. Singh 2005 BCSC 1545 (which was cited in the Grewal case).  In Prakash, the will-maker adhered to her beliefs in the native Indo-Fijian tradition that sons should inherit all of their parents’ estate to the exclusion of daughters except for token amounts. It was common ground that the will-maker viewed the tradition as binding upon her testamentary choices, or at least highly influential.

The court varied the will to increase the gifts to the daughters, but also did not divide the estate equally between the siblings.  There was a rational and reasonable basis to favor the sons moderately regardless of her traditional values.  While these circumstances by no means rise to the level of her predominant reason for her choices (her traditions) they are compelling enough to recognize a measure of legitimacy in her will.

B.C. courts will not permit unequal treatment of children on the basis of cultural traditions.  However, they will not necessarily order that all siblings be treated equally.

Admitting to Probate a Document or Record That Does Not Meet the Requirements of a Will

February 9, 2020

One of the most anticipated changes to B.C. estate litigation legislation was the introduction of s. 58 of the Wills, Estates and Succession Act [“WESA”], which allows the court to “cure deficiencies” in a will.  This permits the court to admit to probate a document or record that does not meet the technical requirements of a will.

Prior to the passing of WESA, will-makers were required to comply strictly with certain formalities relating to the execution and attestation of a will.  If these formalities were not met, the will was not valid, and the will-maker’s testamentary intentions would be defeated even if those intentions were clear.

Section 58 of WESA provides that the court may determine that a document or record (including an electronic record) represents the testamentary intentions of a deceased person, and order that it is fully effective as though it had been made as the will or part of the will of the deceased person.

For an order to be granted, the court must be satisfied that (1) the document is authentic, and (2) the document represents the deceased’s testamentary intentions.  The section does not require any minimum level of execution or other formality, although the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intentions.  Regardless of form, the document may be admitted to probate: a handwritten letter, unwitnessed and unsigned, an email, a text message or other instant message, a scribbled “to do” note, a draft Word document.

By way of recent example, in Bizicki Estate 2019 BCSC 2142 the court admitted three notes left by the deceased in his room stating his wish that his girlfriend receive the money in his bank accounts and other personal property.  Two of the notes were undated.  Two of the notes were unsigned.

In Hubschi Estate (Re) 2019 BCSC 2040, another recent court decision, the court admitted an entry found on the deceased’s home computer that read “Get a will made out at some point. A5 – way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor.”

As a result, even when there is no formal will there may be a document or record which sets out the deceased’s testamentary intentions, which may be admitted for probate.  It is important to conduct a careful search of a deceased’s records, including electronic records, to locate any such document.

“Spouse” or “Friend”? (or “Complete Stranger”?): Proving a Spousal Relationship to Make a BC Wills Variation Claim

February 7, 2020

A spouse or a child of a deceased person may bring a proceeding to vary the deceased’s will if they believe that the will does not make fair provision for them.  But before the court will consider whether the will was fair, the person making the claim must establish that they have standing:  was the person actually a child or spouse of the deceased?  Standing as a “child” is fairly straightforward.  Whether someone was a “spouse” can be more complicated.

A Hypothetical to Consider:  The Unexpected Spouse

Consider this:  Your father passes away. Your mother died a few years before him and your father did not remarry.  He leaves a will, naming you as executor, and dividing his estate equally between you and your siblings.  You start administering the estate, when you are suddenly served with a notice of civil claim:  someone has started a lawsuit claiming to be your father’s spouse at the time of his death, and this person is seeking a share of his estate.

Perhaps the claimant is someone you believed to be only a “friend” of your father;

Perhaps the claimant is someone that you believed to be a “girlfriend” of your father, and you are aware that they went on a few dates, but you don’t believe they had been dating for more than two years, or that they were living together;

Perhaps the claimant was a roommate or tenant of your father;

Perhaps the claimant was a resident at the same care facility as your father; or

Perhaps you have absolutely no idea who the claimant is – you’ve never even heard of her.

Whatever the case, you do not accept that this person was your father’s spouse at his death.  What do you do?

The Onus is on the Person Claiming to be a Spouse to Prove a Spousal Relationship

It is important to remember that the onus is on the person claiming to be a spouse to prove a spousal relationship.

Two people are “spouses” for the purpose of making a wills variation claim if, at the date of death of the deceased (1) they were married to each other; or (2) they had lived with each other in a marriage-like relationship for at least two years.  Whether #1 is met is usually obvious.  It is #2 that causes problems.

For common law spouses (not legally married), a claimant must establish: (1) that he/she was living with the deceased for at least two years; AND (2) that he/she lived with the deceased “in a marriage-like relationship.”  Simply living together (i.e. roommates, friends) is not enough to meet the test.

The Court will Delve into the Details of the Alleged Relationship

In this type of case, the court will almost always be presented with two very different versions of the relationship.  The alleged spouse will claim a close and intimate relationship.  The beneficiaries will claim that the alleged spouse was a friend, or a roommate (or even a stranger).

The parties will have to present evidence to support their version of events.  The court will be forced to consider the intimate details of the relationship.  For example:

(1)   SHELTER: Did the parties live under the same roof? What were the sleeping arrangements?

(2)   SEXUAL AND PERSONAL BEHAVIOUR: Did the parties have sexual relations? If not, why not?  Did they maintain an attitude of fidelity to each other?  Did they eat their meals together?  What, if anything, did they do to assist each other with problems or during illness?   Did they buy gifts for each other on special occasions?

(3)   SERVICES: What was the conduct and habit of the parties in relation to preparation of meals, washing and mending clothes, shopping, household maintenance, etc…

(4)   SOCIAL: What was the relationship and conduct of each of them towards members of their respective families, friends, and the community?  Were they perceived as a couple in the community?

(5)   SUPPORT (ECONOMIC): What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.) or the acquisition and ownership of property?  Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

A fact-specific inquiry

Obviously, this is a very fact-specific inquiry – no two relationships are exactly the same, and different people have different views of what constitutes a “normal” common law spousal relationship.  Some factors may support a finding that there is a spousal relationship, while some factors may weigh against such a finding.  The court must weigh all of the evidence and make a determination.

Removal of Human Reproductive Material from a Deceased Person

February 5, 2020

There are some fairly typical claims that we see in estate litigation:  wills variation, lack of testamentary capacity, undue influence, resulting trust over jointly owned assets, and improper conduct by executors.  L.T. v. D.T. Estate 2019 BCSC 2130 [“L.T.”], a decision of the B.C. Supreme Court handed down on December 9, 2019, was not a typical estate litigation case.

In L.T., the petitioner wife applied for an order that her deceased husband’s sperm be removed from his body to be used for reproductive purposes by his wife.

The Assisted Human Reproduction Act and the Assisted Human Reproduction (Section 8 Consent) Regulations allow you to provide written consent to remove human reproductive material from your body after your death for the purpose of creating an embryo.

However, the deceased person had not provided his written consent in the L.T. case.  The deceased and his wife had never discussed the issue.  He had died suddenly and unexpectedly.  He had been in a long term relationship with his wife.  They had very recently become parents, and it was accepted that the deceased expressed while alive that he wished to have more children.

The wife argued that the requirement for written consent should only apply when a deceased person contemplated or anticipated their death, and should not apply when the death was unexpected.  The court rejected this argument.  The court also rejected the argument that the sperm removed and stored (pending a court ruling) was property which vested in the wife.

The application was dismissed.  The wife was not entitled to receive her deceased husband’s sperm for reproductive purposes because he had not provided his written consent during his lifetime.

As the court noted, most young couples do not put their minds to this set of circumstances.  But with ever-improving technologies and changing views of ethics and the family, this is likely a discussion that will continue in the home, in the legislature, and in the courts.